The Colorado Court of Appeals on Thursday ruled against Christian cake designer Jack Phillips, upholding a state district court’s verdict that Phillips violated the state’s anti-discrimination law by refusing to create a cake celebrating a gender transition back in 2017.
Phillips’ attorneys at Alliance Defending Freedom released a statement saying they will appeal the ruling, arguing that Phillips views his cakes as a form of speech that is subject to constitutional religious liberty and free speech protections.
The three-judge panel argued that creating a cake with no verbal message—only blue icing and pink cake signifying transgenderism—would not constitute “speech” on Phillips’ part and wouldn’t be attributable to him.
“Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” ADF Senior Counsel Jake Warner, who argued Phillips’ case in Scardina v. Masterpiece Cakeshop, said in a statement. “Over a decade ago, Colorado officials began targeting Jack, misusing state law to force him to say things he does not believe. Then an activist attorney continued that crusade. This cruelty must stop. One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs.”
Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, first ran afoul of the state in refusing to design a gay wedding cake in 2013—a case in which he eventually prevailed in 2018 before the U.S. Supreme Court. The justices ruled that the state of Colorado had demonstrated hostility toward Phillips’ Christian beliefs.
On the same day the high court announced it would hear Phillips’ wedding cake case, a local attorney and transgender activist who goes by Autumn Scardina asked Masterpiece to create a cake celebrating Scardina’s gender transition and birthday. Upon learning the meaning of the pink and blue cake, Phillips refused the request. Scardina, a biological male, filed suit.
According to ADF, Scardina also called Masterpiece requesting a cake “depicting Satan smoking marijuana to ‘correct the errors of [Phillips’] thinking.’”
Warner, Phillips’ attorney, said his client “works with all people and always decides whether to take a project based on what message a cake will express, not who is requesting it.”
“We conclude,” wrote Judge Timothy Schultz, “that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker. Thus, CADA [Colorado Anti-Discrimination Act) does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina.”
ADF President and General Counsel Kristen Waggoner disagreed.
“Jack Phillips serves all people but shouldn’t be forced to create custom cakes with messages that violate his conscience,” Waggoner told the Washington Times.
A case with similar constitutional questions, also being argued by ADF and originating in Colorado—303 Creative v. Elenis—was heard at the Supreme Court on Dec. 5, with a ruling expected in the summer. That case, Warner says, could have direct bearing on Phillips’ latest case and how Colorado enforces its anti-discrimination law.